archer mobility v. penco medical - complaint
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8/12/2019 Archer Mobility v. Penco Medical - Complaint
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UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIRE
Archer Mobility Products, LLC, ))Plaintiff, )
)v. ) Civil Action No. ________
)Penco Medical, Inc., ) DEMAND FOR JURY TRIAL
)Defendant. )
ARCHER MOBILITY PRODUCTS, LLC COMPLAINT FOR DECLARATORYJUDGMENT FOR NON-INFRINGEMENT
Plaintiff Archer Mobility Products, LLC (“Archer”), through counsel, hereby
brings its Complaint for Declaratory Judgment against Penco Medical, Inc. (“Penco”),
and alleges as follows:
NATURE OF ACTION
1. This is an action for a declaratory judgment of non-infringement of
United States Patent No. D442,123 (the “’123 Patent”) under 28 U.S.C. §220l
(Declaratory Judgment Act). Archer also seeks declaratory judgment that the '123 patent
is invalid.
PARTIES
2. Archer is a limited liability New Hampshire company with a principal
place of business at 20 Circle Drive, PO Box 611, Holderness NH 03245.
3. Upon information and belief, Penco is a corporation organized and
existing under the laws of the State of Pennsylvania, with a principal place of business at
One Ice Lake Drive, Mountaintop, PA 18707.
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JURISDICTION AND VENUE
4. This is an action arising under the Patent Laws of the United States, 35
U.S.C. §§101 and 171 et seq. and the Federal Declaratory Judgment Act, 28 U.S.C. §§
2201 and 2202.
5. Upon information and belief, this court has personal jurisdiction over
Penco through Penco’s purposeful minimum contacts with New Hampshire, by Penco’s
transacting of business in this State, through Penco’s selling of its goods and services in
connection with the alleged patent which is the subject of the ‘123 Patent, and through
Penco’s contact with Archer.
6. Venue is proper pursuant to 28 U.S.C. §§ 139l(b)-(c) because the events
and communications between the parties that give rise to Archer’s claim for declaratory
relief occurred in New Hampshire, and because upon information and belief, Penco is
subject to the personal jurisdiction in this Court.
7. An actual case or controversy has arisen between the parties. Penco
demanded that Archer cease and desist from any use and/or sale of Archer’s Universal
Walker Ski Glides product, and has asked Archer for an accounting of damages in order
to determine the damages owned to Penco.
FACTS
DEFENDANT'S THREAT OF LITIGATION
8. On June 3, 2014 Penco sent a threating letter to Archer which alleged that
the sales, and offering for sale, of Archers' Universal Walker Ski Glides product
constitutes patent infringement and asserted that it would bring a lawsuit against Archer
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for said infringement if Archer does not immediately cease and desist their commercial
activities involving their Universal Walker Ski Glides product. Exhibit A.
9. As a result of Penco's threat of litigation and the circumstances
surrounding this threat, an actual, present, and justiciable controversy has arisen between
Archer and Penco regarding Archer's sale of its Top Glide product.
PLAINTIFF'S NON-INFRINGEMENT OF
DEFENDANT'S ALLEGED PATENT
10. The '123 patent is limited in scope to the design set forth in the figures in
the patent.
11. There are many differences between the visual appearance of Archer's
Universal Walker Ski Glides and the design covered by the '123 patent, including
differences in plug shape and ski shape, among others.
12. Archer’s Universal Walker Ski Glides contains a square plug. In contrast,
Penco's '123 patent has a figure showing the plug as circular in shape.
13. As a further example, the ‘123 patent figures show the front section of the
base of the glider to have straight lined edges. In contract, Archer’s Universal Walker Ski
Glides product’s front section is curved.
14. As a further example, the ‘123 patent figures show a tab in the plug of the
invention. In contract, Archer’s Universal Walker Ski Glides product’s does not contain
any tabs in the plug.
15. Archer's product does not infringe on the '123 patent because an ordinary
observer would not believe that the Archer product is the same or substantially similar to
the design required by the '123 patent.
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INVALIDITY OF DEFENDANT'S ALLEGED PATENT
16. The '123 patent is invalid and unenforceable for failure to comply with
one or more of the conditions for patentability set forth in the Patent Laws of the United
States Code, Title 35 at least in Sections 102, 103, 112, and 171.
17. The '123 patent should be declared invalid due to the functional nature of
Penco’s product.
18. Penco’s patent, including, but not limited to, the plug and the glider is
directed to a set of functional features used to support and utilize the walker.
19. Penco cannot legally own or assert design patent rights to a functional
design.
COUNT 1: Declaration of Non-Infringement of Defendant's Alleged Patent
20. Archer repeats and re-alleges each and every allegation set forth in the
preceding paragraphs of this Complaint.
21. Penco has asserted that Archer' sale of its Universal Walker Ski Glides
product infringes the '123 patent and has threatened to bring a lawsuit against Archer. An
actual, present, and justiciable controversy has arisen between Penco and Archer
concerning Archer’s use and sale of its Universal Walker Ski Glides.
22. Archer seeks declaratory judgment that its manufacture, use, offer for sale,
and/or sale of the Universal Walker Ski Glides product does not infringe on Penco's
alleged design patent, and does not otherwise violate any of Penco’s patent rights under
federal law including, but not limited to, 35 U.S.C. §§ 101 and 171, et seq.
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COUNT 2: Declaration of Invalidity and
Unenforceability of Defendant's Alleged Patent
23. Archer repeats and re-alleges each and every allegation set forth in the
preceding paragraphs of this Complaint.
24. The '123 patent for a walker glide with retractable keyed plug is functional
and should therefore be invalidated.
25. Archer seeks declaratory judgment that the '123 patent is invalid and/or
unenforceable, for at least these grounds, and for any and all other grounds of invalidity
and unenforceability available under federal law, the Patent Act, including, but not
limited to, 35 U.S.C. §§ 102, 103, 112, and 171.
26. Archer reserves the right to amend its allegations and/or this Complaint to
add any further defenses once further discovery has been conducted in this matter.
PRAYER FOR RELIEF
WHEREFORE, pursuant to the Patent Act, 35 U.S.C. §§ 101 and 171, et seq., and
the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, Archer prays for
relief as follows:
A. Declare that Archer and their customers and suppliers have the right to
make, use, sell, offer for sale the Universal Walker Ski Glides product and that this
product does not infringe Penco's design patent rights, if any rights are established;
B. Declare that Penco's '123 patent entitled "Walker Glide with Retractable
Keyed Plug" is invalid and unenforceable;
C. Award Archer its costs and Attorney's fees under 15 U.S.C. §1117 and 35
U.S.C. § 285, and any other applicable laws; and,
D. Awarding such other relief as this Court may deem just and proper.
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JURY TRIAL DEMAND
Archer demands a trial by jury on all issues triable by right of jury.
Date: June 10, 2014 Respectfully submitted by,
Attorneys for PlaintiffArcher Mobility Products, LLC
/s/ Gary E. LambertGary E. Lambert (NH Bar # 16245)
LAMBERT & ASSOCIATES92 State Street
Boston, MA 02109Telephone: (617) 720-0091
Facsimile: (617) [email protected]
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82286087
Salans FMC SNR Denton
dentons.com
D +1 816 460 2605
Dentons US LLP
4520 Main Street
Suite 1100
Kansas City, MO 64111-7700 USA
T +1 816 460 2400
F +1 816 531 7545
Brian R. McGinley
Partner
June 3, 2014
By FedEx & E-Mail
URGENT
Robert Epp
Manager
Archer Mobility Products, LLC
PO Box 611
Holderness, NH 03245
Robert Epp
Manager
Archer Mobility Products, LLC
20 Circle Dr.
Holderness, NH 03245
Re: Notice of Infringement of U.S. Pat. No. D442123
Our Ref. No. 70000814-0004
Dear :
This lawfirm represents Penco Medical, Inc. (Penco). Penco owns U.S. Pat. No. D442,123 titled Walker
Glide with Retractable Keyed Plug (the '123 Patent) (copy attached as Exhibit A). The '123 Patent
discloses and claims an ornamental design for a walker glide with retractable key plug.
It has come to our attention that Archer Mobility Products, LLC d/b/a "Top Glides" (Top Glides) appears to
be using, selling, importing and/or offering to sell walker glides within the United States under the mark
TOP GLIDES that infringe the '123 Patent. For example, we have provided printouts from Top Glides'
website at www.topglides.net showing an exemplary "top selling" walker glide design which appears
substantially identical to and within the scope of our client’s '123 Patent (see Exhibit B).
Top Glides' aforementioned unauthorized activities violates our client’s patent rights, which subjects Top
Glides to claims for monetary damages and injunctive relief and other liabilities including attorney fees
and treble damages for willful infringement, particularly in light of the fact that Penco has provided
constructive notice of its rights at least through marking its own walker glides in accordance with 35
U.S.C. § 287.
In addition, we consider it likely that in offering for sale the walker glide designs shown in Exhibit B, youare passing off your glides as Penco products and therefore are in breach of the Lanham Act and similar
state laws governing unfair competition. Resulting confusion amongst consumers is even more likely
given that Top Glides apparently has until recently sold authorized Penco walker glides under the PENCO
mark through the website at www.topglides.net. (See Exhibit C)
On Penco’s behalf, we demand that you immediately cease and desist from any and all direct and indirect
use, sale, or offers to sell within the U.S., or importation into the U.S. of infringing products, or other
commercial activities which violate Penco’s legal rights. Without limitation we demand that you
immediately cease and desist from selling or offering for sale those walker glide products illustrated in
Exhibit B and otherwise within the scope of the '123 Patent..
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82286087
June 3, 2014
Page 2
Salans FMC SNR Denton
dentons.com
Without limitation, we further demand that you provide an accounting of damages to Penco and
immediately disclose in writing the identities and locations of all third parties to which you have ever sold
or distributed infringing product, and that you identify the numbers of infringing product you have ever
sold or distributed. We require this information so that we can determine the amount of monetary
damages to which it is entitled.
We must receive your written assurances of compliance with these demands no later than 5:00 p.m. CDT
June 12, 2014. If we do not hear from you within this timeframe, Penco is prepared to take appropriate
actions to further investigate this matter and protect its legal rights.
This letter shall not constitute a waiver of, or otherwise prejudice, any of Penco’s legal rights, which are
expressly reserved.
Sincerely,
Dentons US LLP
By:
Brian R. McGinley
cc: Penco Medical, Inc.
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S 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except
rovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
. (a) PLAINTIFFS DEFENDANTS
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
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’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF D
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6
Foreign Country
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’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liabi lity ’ 830 Patent ’ 470 Racketeer Influence
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizatio
Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit
(Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commod
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Acti
’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts
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’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Informa
’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Proc
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Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 OriginalProceeding
’ 2 Removed fromState Court
’ 3 Remanded fromAppellate Court
’ 4 Reinstated or Reopened
’ 5 Transferred fromAnother District(specify)
’ 6 MultidistrictLitigation
VI. CAUSE OF ACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Brief description of cause:
VII. REQUESTED INCOMPLAINT:
’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.
DEMAND $ CHECK YES only if demanded in complaint
JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)IF ANY
(See instructions):JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Archer Mobility Products, LLC
Grafton, NH
Gary E. LambertLambert & Associates92 State Street, Suite 200 Boston, MA 02109
Penco Medical, Inc.
Luzerne, PA
28 U.S.C. 2201 (Declaratory Judgment Act)
Declaratory judgment of non-infringement of patent rights
6/10/2014 /Gary E. Lambert/
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JS 44 Reverse (Rev. 12/12)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk o
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I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, us
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precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)
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sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more th
one nature of suit, select the most definitive.
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When this box is checked, do not check (5) above.
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Date and Attorney Signature. Date and sign the civil cover sheet.
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AO 440 (Rev. 06/12) Summons in a Civil Action
U NITED STATES DISTRICT COURTfor the
__________ District of __________
)
)))))))))))
Plaintiff(s)
v. Civil Action No.
Defendant(s)
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.
CLERK OF COURT
Date:Signature of Clerk or Deputy Clerk
District of New Hampshire
Archer Mobility Products, LLC
Penco Medical, Inc.
Penco Medical, Inc.One Ice Lake DriveMountaintop, PA 18707
Gary E. LambertLambert & Associates92 State StreetSuite 200Boston, MA 02109
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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date) .
’ I personally served the summons on the individual at (place)
on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
0.00
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